Oldani v. Oldani ( 2015 )

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PETER OLDANI v. JACQUELINE OLDANI
(AC 36016)
Lavine, Keller and Bear, Js.
Argued October 23, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Pinkus, J. [dissolution judgment];
Hon. Howard T. Owens, Jr., judge trial referee [motion
for contempt, financial orders].)
Edward Kanowitz, for the appellant (plaintiff).
Sperry A. DeCew, for the appellee (defendant).
Opinion
LAVINE, J. This marital dissolution matter returns to
this court following a remand for a rehearing on all
financial orders and attorney’s fees. See Oldani v.
Oldani, 132 Conn. App. 609, 628, 34 A.3d 407 (2011)
(Oldani I). On appeal, the plaintiff, Peter Oldani, claims
that on remand the trial court (1) issued orders that
exceeded the scope of the remand, (2) failed to hold a
hearing on his motion for contempt, and (3) committed
other reversible error.1 We reverse in part and affirm
in part the judgment of the trial court.
The following factual and procedural history is rele-
vant to our resolution of the plaintiff’s claims on appeal.
The plaintiff and the defendant, Jacqueline Oldani, met
and married one another in 2002. Id., 611–12. At the
time, the plaintiff, who is approximately twenty years
older than the defendant, had substantial assets, but
the defendant had limited resources. Id., 611. Prior to
their marriage, the parties negotiated a prenuptial
agreement each with the assistance of counsel. Id., 611–
12. The parties’ only child was born in June, 2004.
Id., 612.
In May, 2008, the plaintiff commenced the present
action for dissolution of marriage. Id., 611. He alleged
that the marriage had broken down irretrievably, and
he sought to enforce the prenuptial agreement in the
dissolution proceeding. Id. The defendant filed an
answer, special defense and cross complaint, and chal-
lenged the enforceability of the prenuptial agreement.
Id. On August 10, 2009, the court, Pinkus, J., issued a
memorandum of decision, in which it found that the
plaintiff’s financial statement did not specifically indi-
cate his income at the time the prenuptial agreement
was being negotiated; id., 620; but he concluded that
‘‘the defendant should have been able to approximate
the plaintiff’s income from the information she was
provided.’’ Id., 622. After concluding that the prenuptial
agreement was valid, the court dissolved the marriage
of the parties. Id., 611–12. The court also issued certain
financial orders in keeping with the prenuptial
agreement, which included the payment of property
taxes and mortgages on the marital home. Id., 612. In
addition, the court also ordered ‘‘the parties to sell the
jointly owned marital home, with the net proceeds from
the sale to be divided equally between the parties.’’ Id.
The defendant filed an appeal with this court on Octo-
ber 26, 2009, and the plaintiff cross-appealed.2 Id., 613.
On appeal, the defendant claimed, in part, that Judge
Pinkus improperly concluded that the prenuptial
agreement was enforceable; id., 610; because the plain-
tiff had failed to make fair and reasonable disclosure
of his income, and therefore, the agreement was uncon-
scionable at the time the plaintiff sought to enforce it.
Id., 614.3
In resolving the defendant’s claim, this court noted
the burden of financial disclosure on the parties relative
to a prenuptial agreement: the ‘‘burden is not on either
party to inquire, but on each to inform, for it is only
requiring full disclosure of the amount, character, and
value of the parties’ respective assets that courts can
ensure intelligent waiver of the statutory rights
involved.’’ (Internal quotation marks omitted.) McHugh
v. McHugh, 181 Conn. 482, 486–87, 436 A.2d 8 (1980).
Following its plenary review of the record, this court
concluded that ‘‘although the plaintiff may have pro-
vided a sufficient approximation of his property hold-
ings and other financial obligations, he failed to provide
the defendant with sufficient information regarding his
income prior to her signing the prenuptial agreement.
Because the plaintiff failed to meet this burden to
inform, it was not legally and logically correct for the
court to have determined that the prenuptial agreement
was enforceable.’’ Oldani v. Oldani, supra, 132 Conn.
App. 624. This court concluded that because the prenup-
tial agreement was not enforceable, the propriety of
Judge Pinkus’ financial orders were put in question and
that the case had to be remanded ‘‘with direction to
hold a new hearing as to all financial orders, including
attorney’s fees.’’4 Id. The remand order was issued on
December 20, 2011.
On February 3, 2012, the plaintiff filed a request to
amend his complaint and an amended complaint that
alleged six additional counts, namely, fraud in the
inducement, fraud, negligent misrepresentation, negli-
gent infliction of emotional distress, intentional inflic-
tion of emotional distress, and obtaining money under
false pretenses. The defendant did not object to the
request to amend,5 but filed a motion for summary judg-
ment on April 9, 2012. In her motion for summary judg-
ment, the defendant claimed that, as a matter of law,
counts two through seven of the amended complaint
were barred on the grounds of collateral estoppel and
res judicata. The court, Wolven, J., denied the motion
for summary judgment without issuing a written memo-
randum of decision.6 On September 5, 2012, the defen-
dant filed an answer to the amended complaint and a
notice of bankruptcy.
The parties appeared before the court, Hon. Howard
T. Owens, Jr., judge trial referee, over several days in
May, June, and July, 2013, to retry the financial orders
and attorney’s fees. Judge Owens issued a written mem-
orandum of decision on August 14, 2013, in which he
stated that he had considered the criteria set forth in
General Statutes §§ 46b-81 and 46b-82. Because the
cause of the breakdown of the marriage had not been
considered during the dissolution trial, Judge Owens
heard evidence on the cause of the breakdown of the
marriage and concluded that the plaintiff was responsi-
ble for the breakdown.
In his memorandum of decision, Judge Owens stated
that, during the retrial, a great deal of time ‘‘was
extended to the plaintiff, who made detailed claims
with respect to the assets of the parties as well as an
attempt to retry the issue of the prenuptial agreement.
The Appellate Court in its judgment relating to the first
trial put the issue of the validity of the prenuptial
agreement to rest.’’7 The court permitted the plaintiff
to enter evidence of the history of alimony and support
orders, as well as the defendant’s failure to make timely
payments on the joint mortgages and tax obligations.
The court found that subsequent to this court’s
remand for a hearing on the financial matters, the defen-
dant had filed a petition in bankruptcy and was at the
time waiting for a formal discharge. The court further
found that as a result of the ‘‘anticipated discharge,’’
the defendant will have a one-half interest in the marital
home on Grieb Road in Wilton. The defendant’s interest
in the marital home was conveyed to her by the plaintiff
prior to the breakdown of the marriage. As a conse-
quence of the defendant’s bankruptcy, the plaintiff has
the full responsibility for the existing mortgage, home
equity loan, and real estate taxes. The court found the
fair market value of the marital home to be $700,000.
The court ordered the plaintiff to liquidate the first and
second mortgages to convey his one-half interest in the
marital home to the defendant.
The court ordered the plaintiff to be responsible for
the medical insurance and the educational support for
the parties’ child, and one-half of the child’s unreim-
bursed medical and dental expenses until the first of
several contingent events occurs. The court also
ordered the plaintiff to maintain a policy of insurance
on his life in the amount of $125,000 to benefit the
defendant and as trustee for the parties’ child in equal
amounts. The court awarded no alimony, as neither
party sought it.
The court ordered the parties to retain sole posses-
sion of their own personal property, home furnishings,
motor vehicles, bank accounts, and retirement funds.
The plaintiff was ordered to retain sole possession of
his business interests, financial assets and accounts,
and business interests. The defendant was ordered to
be responsible for the debts listed on her May, 2013
financial affidavit that are not discharged in bankruptcy.
The court found that the defendant was without suffi-
cient funds to pay her attorney’s fees and ordered the
plaintiff, within sixty days, to pay the defendant $25,000
for attorney’s fees. The plaintiff appealed from the judg-
ment with regard to the court’s financial awards on
August 30, 2013.
I
The plaintiff’s first claim is that the court failed to
comply with the remand order in Oldani I. More specifi-
cally, the plaintiff claims that Judge Owens improperly
‘‘did not consider the changes in the parties’ financial
conditions since 2009 through the date of the new trial,
did not reconsider the financial issues, and did not
properly recognize [his] new claims arising as a result
of the rescript . . . .’’ Although the court considered
matters outside the remand order, the error was harm-
less and the plaintiff’s claim fails.
We first set forth the applicable standard of review.
‘‘We review financial awards in dissolution actions
under an abuse of discretion standard. . . . In order
to conclude that the trial court abused its discretion,
we must find that the court either incorrectly applied
the law or could not reasonably conclude as it did.
. . . In making those determinations, we allow every
reasonable presumption . . . in favor of the correct-
ness of the [trial court’s] action.’’ (Internal quotation
marks omitted.) Loughlin v. Loughlin, 93 Conn. App.
618, 624, 889 A.2d 902, aff’d, 280 Conn. 632, 910 A.2d
963 (2006).
‘‘A fundamental principle in dissolution actions is that
a trial court may exercise broad discretion in awarding
alimony and dividing property as long as it considers
all relevant statutory criteria. . . . Further, we note
that [t]he issues involving financial orders are entirely
interwoven. The rendering of a judgment in a compli-
cated dissolution case is a carefully crafted mosaic,
each element of which may be dependent on the other.
. . . Furthermore, trial courts are endowed with broad
discretion to distribute property in connection with a
dissolution of marriage.’’ (Citation omitted; internal
quotation marks omitted.) Lynch v. Lynch, 135 Conn.
App. 40, 45–46, 43 A.3d 667 (2012).
A
The plaintiff claims that the court misinterpreted the
Oldani I remand order and tried the case under an
erroneous standard. We do not agree.
The essence of the plaintiff’s claim appears to be that
Judge Owens valued the marital home at the time of
the remand hearing, not as of the date of the dissolution
of the parties’ marriage, which occurred in 2009. The
marital home apparently had a greater value at the time
of dissolution than it did at the time of the remand
hearing. Although Judge Owens found the value of the
marital home at the time of the remand, rather than
the dissolution, this error was harmless, as the marital
home was owned by the parties in equal shares both
at the time of the dissolution and the remand hearing.
Ordinarily, ‘‘[i]n a dissolution action, marital property
is valued as of the date of dissolution . . . .’’ (Internal
quotation marks omitted.) Wendt v. Wendt, 59 Conn.
App. 656, 661, 757 A.2d 1225, cert. denied, 255 Conn.
918, 763 A.2d 1044 (2000); see also Tobey v. Tobey, 165
Conn. 742, 748–49, 345 A.2d 21 (1974). In Sunbury v.
Sunbury, 216 Conn. 673, 675–76, 583 A.2d 636 (1990),
our Supreme Court considered the date to be used to
determine the value of the marital home and a profit
sharing plan on remand for reconsideration of the finan-
cial orders, i.e., date of dissolution or date of the remand
hearing. The court concluded that ‘‘[i]n the absence of
any exceptional intervening circumstances occurring
in the meantime, [the] date of the granting of the divorce
would be the proper time as of which to determine the
value of the estate of the parties upon which to base
the division of property. . . . An increase in the value
of the property following a dissolution does not consti-
tute such an exceptional intervening circumstance.’’
(Citation omitted; internal quotation marks omitted.)
Id., 676. In Kremenitzer v. Kremenitzer, 81 Conn. App.
135, 838 A.2d 1026 (2004), this court concluded on the
basis of the rule enunciated in Sunbury, ‘‘[l]ogically,
there is no reason why the [dissolution] date should
not be used when there has been a decrease in the
value of property.’’ Id., 140; see also Bruno v. Bruno,
132 Conn. App. 339, 354, 31 A.3d 860 (2011) (value as
of date of dissolution, not time of contempt hearing,
despite diminution in value of brokerage account).
Although Judge Owens found the value of the marital
home on the basis of the evidence presented by the
parties of the value at the time of the remand hearing,
the plaintiff has failed to explain how he was harmed
by the court’s finding or how the finding prejudiced
him in the mosaic of its financial orders. The parties
each owned one-half of the marital home at the time
of the dissolution and the remand; the diminution in
value of the property affected them each equally. For
the foregoing reason, the plaintiff’s claim fails.
B
The plaintiff also claims that the court denied him
due consideration of the claims in his amended com-
plaint. The plaintiff’s claim fails because the amended
complaint was not properly before the trial court.
In Oldani I, the court remanded the dissolution
action for a hearing on the financial orders and attor-
ney’s fees. Soon after the remand order was issued, the
plaintiff filed a request to amend his complaint with an
amended complaint that included six counts unrelated
to the remand order. Although Judge Owens stated in
his memorandum of decision, that in Oldani I, the
Appellate Court ‘‘put the issue of the validity of the
prenuptial agreement to rest,’’ he nonetheless permitted
the plaintiff to present evidence on his claims. The court
considered the plaintiff’s fraud claim, but concluded
that the fraud ‘‘claim is now [a non]existing contro-
versy’’ in view of the Appellate Court’s decision in
Oldani I. Ultimately, the court rendered judgment on
all counts of the amended complaint in favor of the
defendant, despite the limited remand order to consider
only the financial orders and attorney’s fees.
‘‘Well established principles govern further proceed-
ings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . This is the guiding principle that
the trial court must observe. . . . Compliance means
that the direction is not deviated from. . . . It is the
duty of the trial court on remand to comply strictly
with the mandate of [this] court according to its true
intent and meaning. No judgment other than that
directed or permitted by the reviewing court may be
rendered, even though it may be one that [this] court
might have directed. The trial court should examine
the mandate and the opinion of the reviewing court
and proceed in conformity with the views expressed
therein.’’ (Internal quotation marks omitted.) Light-
house Landings, Inc. Connecticut Light & Power Co.,
300 Conn. 325, 341, 15 A.3d 601 (2011).
In his brief on appeal, the plaintiff claims that his
amended complaint was proper in view of language in
our Supreme Court’s decision in Rizzo Pool Co. v. Del
Grosso, 240 Conn. 58, 689 A.2d 1097 (1997).8 Specifi-
cally, the Supreme Court in Rizzo Pool Co. stated that
‘‘[w]e have also cautioned, however, that our remand
orders should not be construed so narrowly as to pro-
hibit a trial court from considering matters relevant to
the issues upon which further proceedings are ordered
that may not have been envisioned at the time of the
remand. . . . So long as these matters are not extrane-
ous to the issues and purposes of the remand, they
may be brought into the remand hearing.’’ (Emphasis
added; internal quotation marks omitted.) Id., 65–66.
In Rizzo Pool Co., the consumer defendants prevailed
in their appeal from the judgment of the trial court in
favor of the plaintiff business and the case was
remanded with direction to render judgment in favor
of the defendants. See Rizzo Pool Co. v. Del Grosso,
232 Conn. 666, 657 A.2d 1087 (1995). On remand, the
consumer defendants sought attorney’s fees pursuant
to General Statutes § 42-150bb, which the trial court
awarded. Rizzo Pool Co. v. Del Grosso, supra, 240 Conn.
61–62. The plaintiff business appealed, claiming that the
remand order prohibited the trial court from awarding
attorney’s fees to the defendants. Id., 65. Our Supreme
Court stated that ‘‘[t]he relevant circumstances in this
case necessarily include the fact that the attorney’s fees
statute, § 42-150bb, became applicable to the defen-
dants only after the trial court had rendered judgment
in their favor, postappeal. Consequently, the trial court
was required to look carefully at the words of the appel-
late mandate in conjunction with the language of the
statute in question. Under § 42-150bb, the court has no
latitude to deny such an award to a consumer who
successfully defends an action brought against him by
a commercial party. Therefore, despite the absence of
a specific mandate in the remand order, attorney’s fees
were available to the defendants by operation of law.’’
(Emphasis added.) Id., 66. In the present matter, the
plaintiff was not entitled to amend his complaint by
operation of law.
Rizzo Pool Co. is legally and factually distinguishable
from the present case. Counts two through seven of
the plaintiff’s amended complaint are extraneous to the
remand order regarding the court’s financial orders.
They were not properly before the court. As Judge
Owens stated, the matter of the parties’ premarital nego-
tiations was decided in Oldani I. The court’s consider-
ation of and rendering judgment on counts two through
seven of the amended complaint, however, exceeded
the scope of the remand order. We, therefore, reverse
the judgment as to counts two through seven and
remand the case with direction to deny the plaintiff’s
request to amend his complaint and to vacate the judg-
ment as to those counts.
II
The plaintiff’s second claim is that the court improp-
erly refused to hold a hearing on his motion for con-
tempt and did not grant him a proper evidentiary
hearing. We disagree.
On August 31, 2012, the plaintiff filed a motion for
contempt in which he alleged that on August 7, 2008,
Judge Owens entered pendente lite orders against the
plaintiff for alimony, child support, and household
expenses. The plaintiff also claimed that Judge Owens
ordered the defendant to pay the real property taxes
on the marital home from June 1, 2008, forward. The
plaintiff represented that the defendant had failed to
pay the real property taxes due. The plaintiff also
alleged that a judgment of marital dissolution was ren-
dered on August 10, 2009.
On appeal, the plaintiff claims that the court initially
refused to hear the motion for contempt, and that when
the court agreed to hear the motion, it did not give the
plaintiff sufficient time to prepare to present evidence.
The record discloses, however, that Judge Owens heard
the plaintiff’s motion for contempt during the course
of the remand hearing. In his memorandum of decision,
Judge Owens denied the plaintiff’s motion for contempt.
The plaintiff’s claim, therefore, fails.
III
The plaintiff’s third claim is that the court made
numerous other errors, which, taken together, substan-
tially interfered with the rights of the parties. We decline
to address the plaintiff’s claim because it has not been
adequately briefed.
The plaintiff’s brief, after quoting the applicable stan-
dard of review, consists of a series of paragraphs quot-
ing isolated findings or statements of the trial court
extrapolated from the transcript or memorandum of
decision. The plaintiff, however, has provided no legal
analysis of his several claims and makes reference to
certain matters outside the record. ‘‘Analysis, rather
than mere abstract assertion, is required in order to
avoid abandoning an issue by failure to brief the issue
properly.’’ (Internal quotation marks omitted.) Doyle v.
Doyle, 150 Conn. App. 312, 321, 90 A.3d 1024 (2014).
An appellant should not expect the court to craft his
argument or analysis on the basis of mere claims.
The judgment as to counts two through seven is
reversed and the case is remanded with direction to
deny the request to amend the complaint and to vacate
the judgment as to those counts. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
Following oral argument before this court, we sua sponte ordered the
parties to file supplemental briefs to address the following issue: ‘‘Whether
there is a final judgment in this case where the trial court did not specifically
render judgment on all counts of the amended complaint dated January 9,
2012. See State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), and Gorelick
v. Montanaro, 94 Conn. App. 14, 891 A.2d 41 (2006).’’ Upon review of the
supplemental briefs, the record, and the signed judgment file, which was filed
postargument, we conclude that the appeal was taken from a final judgment.
2
Before the appeal was heard, Judge Pinkus granted the defendant’s
motion ‘‘to terminate the appellate stay with respect to the order requiring
the plaintiff to pay one half of the first mortgage, taxes and insurance and
all of the second mortgage associated with the marital home’’ to avoid a
foreclosure of the marital home. Oldani v. Oldani, supra, 132 Conn. App.
613 and n.2. The court found that the defendant could not service the debt
and that the plaintiff had the financial ability to comply with the order
without suffering irreparable harm. Id., 613 n.2. Thereafter the defendant
filed a motion for contempt claiming that the plaintiff had failed to make the
required payments regarding the marital home, and was taking unauthorized
deductions from his alimony and child support payments to offset money he
claimed the defendant owed him. Id., 613. The court granted the defendant’s
motion for contempt and ordered the plaintiff to pay her $12,463.50. Id.,
613–14. The plaintiff filed a motion to modify child support, claiming a
substantial change of circumstances. Id., 613. The court effectively denied
the motion to modify child support. Id., 614.
3
On cross appeal, the plaintiff claimed that Judge Pinkus improperly (1)
failed to enforce all of the provisions of the prenuptial agreement, (2) devi-
ated from the child support guidelines, (3) calculated the award of attorney’s
fees as to him, (4) found him in contempt, and (5) denied his motion for
modification of child support. Oldani v. Oldani, supra, 132 Conn. App. 625.
In Oldani I, this court addressed only the plaintiff’s claim regarding the
finding of contempt, as the other claims were encompassed by the resolution
of the defendant’s claim regarding the enforceability of the prenuptial
agreement. Id. This court concluded that Judge Pinkus properly found the
plaintiff to be in contempt for failing to pay (1) the defendant monthly
alimony of $4166.67 and (2) one-half of the taxes, insurance and first mort-
gage payments on the marital home, and all of the second mortgage pay-
ments. Id., 626. Judge Pinkus found that the plaintiff had ‘‘failed to make
full payments because he deducted moneys that he believed were owed to
him by the defendant.’’ Id., 626–27. The court found that the plaintiff should
have known that ‘‘he was not permitted to alter the amount he paid in
alimony without a subsequent order of the court . . . .’’ Id., 627. The plaintiff
conceded that he had failed to pay the property taxes, insurance and mort-
gage payments after the court lifted the appellate stay, but claimed that
he was unable to make the payments due to a change in his financial
circumstances. Id. Judge Pinkus found the plaintiff was not credible and
that he had failed to produce real evidence of a change in his financial
circumstances. Id., 627–28. This court affirmed the judgment of contempt.
4
The rescript stated: ‘‘The judgment is reversed only as to the finding that
the parties’ prenuptial agreement is enforceable and the case is remanded for
a new hearing as to all financial orders. The judgment is affirmed in all
other respects.’’ Oldani v. Oldani, supra, 132 Conn. App. 628.
5
See Practice Book § 10-60 regarding the amendment of pleadings.
6
The propriety of Judge Wolven’s ruling on the motion for summary
judgment has not been challenged on appeal.
7
Paragraph 12 of the judgment file states that the ‘‘court has carefully
considered plaintiff’s claim of fraud in the inducement, fraud and negligent
misrepresentation as relates to the prenuptial agreement dated December
2, 2002, as well as the prenuptial agreement dated January 6, 2006. In view
of the Appellate Court ruling in Oldani v. Oldani, [supra, 132 Conn. App.
609], and its invalidation of the agreement, this claim is now [a non]ex-
isting controversy.’’
8
During oral argument before this court, counsel for the plaintiff specifi-
cally was asked whether the amended complaint properly was before Judge
Owens. Counsel responded that the amended complaint was proper under
Rizzo Pool Co.